R. H. Zaidi, J. - (1.) BY means of the present petition under Article 226 of the Constitution of India, the petitioner prays for a writ, order or direction in the nature of mandamus commanding the respondents to regularise his services on the post of Junior Engineer in Zila Parishad, Jhansi, to pay arrears of salary with effect from June, 1989 In the pay scale admissible to the regularly appointed Junior Engineer in the Zila Parishad from the aforesaid date.
(2.) BRIEF facts relevant for resolving the controversy involved in the present case are that it was on 2.7.1984 Zila Parishad, Jhansi requested the Commissioner of the Jhansi Division for sanctioning two more posts of Junior Engineers In the Zila Parishad, on account of increase in the work load in the Zila Parishad. On 23.8.1984 Upper Mukhya Adhikari. Zila Parishad, Jhansi wrote a letter to the Principal, Government Polytechnic College, Jhansi for sending ten names from the merit list of the candidates holding Civil Engineering Diploma for appointment on the post of Junior Engineer. The said principal sent a list of the names of the meritorious candidates, in which name of the petitioner was also included petitioner along with other candidates appeared before the Selection Committee. The Selection Committee recommended the name of the petitioner for appointment as Junior Engineer on 18.9.1984. The District Magistrate approved the proceedings of the Selection Committee and the petitioner was directed to join on 19.10.1984. In pursuance of the aforesaid order the petitioner joined as Junior Engineer on daily wage basis on 26.10.1984 as by that time the additional posts of Junior Engineers were not sanctioned. It was on 9.1.1985 that the Commissioner, Jhansi Division, Jhansi sanctioned two more posts of Junior Engineers for the Zila Parishad, Jhansi. On receipt of the sanction of two additional posts of Junior Engineers from the Commissioner, Jhansi the Zila Parishad, Jhansi asked the name from the Employment Exchange, Jhansi for regular selection on the aforesaid newly sanctioned post of Junior Engineers. As many as 65 names were sent by the Employment Exchange, including the name of the petitioner. On 4.10.1985 the Zila Parishad, Jhansi issued interview letters to the candidates including the petitioner for appearing before the Selection Committee on 20.10.1986. For permanent appointment. As many as 25 candidates, including the petitioner appeared before the Selection Committee on 20.10.1986. The Selection Committee selected the petitioner for appointment on permanent post of Junior Engineer. However, in the meanwhile, before the appointment letter was issued to the petitioner a radiogram dated 18.2.1987 was received in the Zila Parishad, Jhansi from the Government, which reads as under: The Posts of Junior Engineers and Ayurvedic Doctors are being included in Central Transferable Cadre of Zila Parishad Shortly (.) Thus no appointment is to be done nor these Posts henceforth under any circumstances (.) Intimate Total Number of Existing Posts Indicating vacancies against them in your Zila Parishad urgently (.). Sd. (G. S. Srivastava) Under Secretary." On the basis of the aforesaid radiogram, although the petitioner was selected for appointment, but no appointment letter was issued to him by the Zila Parishad. According to the petitioner he was legally entitled to be appointed on the post of Junior Engineer on the basis of the aforesaid selection. He, therefore, submitted a representation to the District Magistrate/ Adhyaksha, Zila Parishad, Jhansi for appointing him on the post of Junior Engineer. The District Magistrate/ Adhyaksha, Zila Parishad wrote a letter to the Government for appointing the petitioner as Junior Engineer, who was holding the said post with effect from 26.10.1984. Since the appointment of the petitioner was not made in spite of letter dated 31.8.1987, another letter dated 10.1.1990 was written by the Adhyaksha/Zila Parishad, Jhansi to the Government for permitting the Zila Parishad to appoint and regularise the services of the petitioner. Since no action was taken by the Government on the letters written by the Adhyaksha Zila Parishad, the petitioner approached this Court and filed the present petition for the above mentioned reliefs. On behalf of the respondents a counter-affidavit was filed. In which it was stated that the petitioner was Initially appointed on temporary and daily wage basis with effect from 26.10.1984. After two posts of Junior Engineers were sanctioned, it Is not disputed that the selection was held by the Zila Parishad for making the said appointments on the said post, in which the petitioner was selected for appointment, but before the letter of appointment could be Issued, a radiogram issued by the Government was received in the office of Zila Parishad stopping the Zila Parishad, Jhansi from making any further appointment on the post in question as the same was centralised. It is stated that the Adhyaksha, Zila Parishad wrote a letter to the Government for appointment of the petitioner on humanitarian ground, as after 8.2.1989 only the State Government could make appointments on the post of Junior Engineers. It is stated that there was no violation of Articles 14, 16 and 39 of the Constitution of India in the present case and the petitioner has got an alternative remedy for ventilation of his grievances by approaching the service tribunal.
(3.) IT may also be noted that by U. P. Zila Parishad (Central Transferable Cadre) (Fifth Amendment) Rules, 1987 the post of Junior Engineers was included In Central Transferable Cadre of Zila Parishad with effect from 1.5.1987. The learned counsel for the petitioner submitted that U. P. Zila Parishad (Central Transferable Cadre) (Fifth Amendment) Rules, 1987, for short the rules, have got no application in the present case, and on the basis of said amendment the petitioner cannot be deprived of his legitimate rights, which have accrued to him or were acquired by him, prior to the aforesaid amendment. It has also been urged that the said rules were not retrospective In operation.;